UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Concepcion Picciotto, et. al. )
                              )  Civil Action. No. 87-3290 LFO
      Plaintiffs pro se       )
                              )      
       v.                     )   
                              )
Donald Hodel, et. al.         )
                              )
      Defendants.             )

OPPOSITION TO DEFENDANTS' MOTION TO DISMISS

This is an action in which the pro se plaintiffs seek to "enjoin the defendants from barring any individual from any portion of Lafayette Park without showing probable cause for such an exclusion." Complaint, pg. 10.

A hearing was held on December 7, 1987, and "in reliance on defendants' representations, and recognizing the authority granted to defendants by 18 USC section 3056 (a)(5) as well as 36 CFR section 1.5" the Court denied plaintiffs' application for a TRO. Memorandum of the Court (hereinafter "Court's Memo"), filed Decemberr 9, 1987, pg. 2.

On December 21, 1987 defendants filed a Motion To Dismiss on the premises that this action is moot (Motion To Dismiss, Memo, pg. 1), and/or that "plaintiffs cannot demonstrate irreparable harm" (id. pg. 3).

Although plaintiffs agree that Secretary Gorbachev's visit is moot, they contend that the issue of illegitiamte closures of public parks is not only alive, but capable of repetition.

DISCUSSION

"Defendants presented the testimony of Steven J. Harrison of the U.S. Secret Service and Robert O. Langston of the U.S. Park Police. They testified, among other things, that in their opinion removal of the public from the South End of Lafayette Park was required as a security measure during visits by Mikhail Gorbachev to the White House." Court's Memo, pg. 1.

If the Court renders "judgment" grounded only on the untested "opinions" of police officials -- as might appear to be the case should this matter end here -- then we must humbly wonder: why

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not simply replace this judicial system with a system of police commissioners?

Plaintiffs have alleged that: "(t)raditionally the southern portion of Lafayette Park has remained open to the public during the ingress to and exit from the White House for many hundreds of visits by bona fide `Heads of State' 1/, and that there has never been an assault upon or impediment to the ingress or exit of any of those visitors." Complaint. para. 24. That allegation went unchallenged by defendants' witnesses.

At best the Court heard only vague assertions respecting "security concerns." Defendants' witnesses testified that they had received unspecified "death threats" against Mr. Gorbachev. But they indicated that over the years they had also received death threats against President Reagan, yet they never found it necessary to close Lafayette Park for the ingress and exit of the president at the White House. Neither did they explain why the "death threats" against Mr. Gorbachev should require greater precautions than those against the president.
______________________________________

1/ Plaintiffs believe the defendants erroneously rely on 18 USC 3056 (a)(5) as authority for Secret Service protection. It has been pointed out (Complaint, para. 4) that Andrei Gromyko is the "Head of State" for the Soviet Union. Defendants have not contradicted that fact, yet continue to refer to Mr. Gorbachev as "Head of State." Motion to Dismiss, pg. 2. Plaintiffs concede that protection for Mr. Gorbachev would be properly authorized under 18 USC 3056 (a)(6), a provision under which the Secret Service daily provides protection for thousands of foreign dipolomatic agents, but which has never been used to force the closure of portions of Lafayette Paark. For that matter even 18 USC 3056 (a)(5) has never before been used for that purpose.

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In support of the Motion to Dismiss defendants make the factually mistaken representation that "(d)uring the General Secretary's visit defendants took the action anticipated by the notice only one time -- on December 10, 1987." Id. pg. 2.

Actually defendants also "took the action anticipated by the notice" on December 8, 1987, an occasion on which the General Secretary did not even travel on Pennsylvania Avenue in the vicinity of Lafayette Park. SEE, Plaintiff's Exhibit (hereinafter "Pl's Ex.") 1.

18 USC 3056 provides that "(t)he protection authorized in paragraphs (2) through (7) may be declined." SEE Pl's Ex. 2. Defendants' witnesses offered no representations either to the effect that Mr. Gorbachev was aware of his right to decline Secret Service protection, or that he chose not to do so.

Notwithstanding the witnesses' purported justification for the extraordinary measure of closing part of Lafayette Park, it was widely reported in the press that, on at least one occasion, Mr. Gorbachev did indeed stop his vehicle and mingle with members of the general public. SEE, Pl's Exs. 3 through 7. On this fact alone it could be inferred that Mr. Gorbachev might have wished to decline "protection" which would preclude his association with members of the general public. Plaintiffs were clearly denied a very unspeculative possibility of associating with Mr. Gorbachev in a spontaneous manner. Complaint, Count Six.

Moreover plaintiffs alleged "irreparable injury" on at least two other counts. Complaint, Counts One and Seven.

Plaintiffs expressed the concern that unless defendants were enjoined from the unprecedented split-second closures of sections of public parks the public "would become vulnerable to continual random, capricious, unjustifiable regulatory re-interpretation and enforcement."

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Complaint, pg. 10. There was no testimony to refute that allegation.

"To find that a case is justiciable under the 'capable of repetition, yet evading review' doctrine, a court must determine that the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and there is a reasonable expectation that same complaining party would be subjected to shte same action again." Conyuer v. Reagan,765 F.2d 1125.

If memory serves correctly (a transcript has not been available) Mr. Langston testified that he had been involved in the planning for Mr. Gorbachev's visit for a lengthy period. SEE, Complaint, pg. 9. Yet it is undisputed that plaintiffs did not receive the "Public Notice" until only a day and a half before Mr. Gorbachev's visit. Complaint, para. 1.

Defendants' "Public Notice" made no reference to the legal authority by which it was issued. Complaint, Ex. 1. It is plaintiffs' recollection that at the onset of the December 7th hearing even Mr. Martinex, counsel for the defendants, stated that he was not aware of any specific legal authority for the closure of the park. Only after some discussion did defendants name 36 CFR 1.5 as their authority.

One of plaintiffs' contentions is that defendants had failed to make a proper "Public Notice." E.g., Complaint, Couints One and Two. At the time of the hearing plaintiffs were unfamiliar with 36 CFR 1.5, and jhad had on opportunity to review the regulation. However a review now reveals that 36 CFR 1.5 (b) states: "(e)xcept in emergency situations, a closure ... shall be published as rulemaking in the Federal Registar." SEE ALSO, Pl's Ex 8, Sections (c) and (e).

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A sign in the Clerk's Office of this Court reads: "Lack of planning on your part does not constitute an emergency on my part." As plaintiffs attempted to point out at the hearing of December 7th, had they been given adequate time they might have worked out an amicable solution with the Park Service, or failing that, been prepared to present a more compelling case in court. SEE Court's Memorandum, filed December 9, 1987, attached excerpt from transcript, page 3.

Plaintiffs do not dispute that, in this instance at any rate 2/, their "First Amendment rights (were) being protected in the most exquisite way that (the Court could) contrive." SEE, e.g., Pl's Ex. 9, Articles 50 and 52. However, and with all due respect, plaintiffs are compelled to remind the Court that Human Rights are, at best, fragile concepts which cannot survive without an objective, ever vigilant judicial system. SEE, generally, Pl's Ex. 9, Articles 47-49, COMPARE, Complaint, Ex. 4 (Petition).

Courts should not merely infer a government's "good intent," but should examine those intents when a reasonable question is raised as to the permissibility of the Government's motives. City of Los Angeles v. Taxpayers for Vincent, l04 S.Ct. 2ll8 (1984).
_______________________________

2/ SEE, Thomas et. al. v. United States, et. al., USDC 84-3552, an action which has set dead in the water since May 1, 1997, when this Court postponed further proceedings, after U.S. Magistrate Arthur Burnett recommended that the Government's Motion for Summary Judgment "must be denied." On December 15, 1987 two plaiantiffs in this case were convicted by J. Richeey of a charge centerring on allegations of "casual sleep" and "storage of property,"terms for which Thomas v. USA seeks declaratory judgment. In all honesty plaintiffs believe that, had this Court acted as promptly in USDC 84-3552 as it did in this case, one way or the other the convictions of December 15th would not have occurred. COMPARE, Pl's Ex. 9, Article 52.

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Certainly there is no objective reason to assume that the KGB (Soviet Secret Service) does not also consider itself to be fulfilling "legitimate security concerns" when it precludes the general public from exercising the freedoms which the Constitutions of both nations guarantee, and which the courts of this land have, to some extent, protected. Pl' Ex. 9, Article 51.

.

Nonetheless this Court was not impressed by plaintiffs' suggestion that the line between Lafayette Park and Red Square would be pushed to the breaking point should the Court allow the closure of a section of a public park merely upon what might be nothing more that mild professional police paranoia. Plaintiffs hereby move the Court to take judicial notice of the fact that the idea has not been confined to plaintiffs' minds:

Published in the Washington Post, December 19, 1987

CONCLUSION

Upon the foregoing discussion plaintiffs believe that at a minimum, the Court should enjoin defendants from again taking "the action anticipated by the notice" without providing a Public Notice reasonably in advance of the "the action anticipated by the notice," thus enabling interested members of the public who might be adversely affected by "the action anticipated by the notice" to prepare a meaningful response to "the action anticipated by the notice." SEE, proposed Order, attached.

To best serve the interests of democracy, plaintiffs think, the Court would not simply accept the untested opinions of defendants' witnesses, but would conduct a trial to insure that closures of the south sidewalk of Lafayette Park on December 8, 1987 and on December 10, 1987 were indeed reasonable, rather than simply an UNPRECEDENTED display of an official hyper-sensitivity and over reaction best reserved for police states.

Respectfully submitted this 4th day of January, 1988,

_____ (signed) ______________________
Concepcion Picciotto, Plaintiff Pro Se
Post Office Box 4931
Washington, D.C. 20008

_____ (signed) ______________________
Ellen Thomas, Plaintiff Pro Se
l440 N Street NW, #4l0, DC 20005
Washington, D.C. 20038

_____ (signed) ______________________
Robert Dorrough, Plaintiff Pro Se
Post Office Box 27217
Washington, D.C. 20038

_____ (signed) ______________________
William Thomas, Plaintiff pro se
1440 N Street, NW, Apt. 410
Washington, D.C. 20005
(202) 462-0757

 

 

 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that this 4th day of January, 1988, I sent one copy of the foregoing PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS, via First Class U.S. mail, postage prepaid to Michale L. Martinez, Assistant United States Attorney, Judiciary Center Building, 555 4th Street, NW, Room 4822, Washington, D.C., 20001, (202) 272-9258.

 

_____(signed)_______________
William Thomas
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Concepcion Picciotto, et. al. )
                              )  Civil Action. No. 87-3290 LFO
      Plaintiffs pro se       )
                              )      
       v.                     )   
                              )
Donald Hodel, et. al.         )
                              )
      Defendants.             )

ORDER

It is, this ________ day of __________________, _______,

ORDERED that defendants be, and hereby are enjoined from closing portions of Lafayette Park without first publishing notice of such closures in the Federal Register, pursuant to the requirement of 36 cfr 1.5(b), and it is further

ORDERED that defendants be, and hereby are enjoined from closing portions of Lafayette Park without first fulfilling the requirement of 36 CFR 1.5(C)(D) AND (E).

 

LOUIS F. OBERDORFER
US District Court Judge

 

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